The short answer
You could provide sworn affidavits as to their own identities and relationship, and declare that your cousin is not your mother’s child.
The whole question
My cousin was registered as my deceased mother's child, even though their own mother is still alive and well. Home Affairs says that only my mother can delink my cousin's profile, which is clearly impossible.
The long answer
For a start, this is a completely unacceptable and ridiculous answer from Home Affairs, which obviously denies the rights to which you are constitutionally entitled.
This is what Home Affairs (DHA) says about their job:
“Firstly, the DHA is custodian, protector and verifier of the identity and status of citizens and other persons resident in South Africa. This makes it possible for people to realize their rights and access benefits and opportunities in both the public and private domains.”
In saying that they do not have the ability to delink the false registration of your cousin as your mother’s child because your mother is deceased, they are making it impossible for you to claim your right to your mother’s deceased estate. This is against their own mandate as an organ of state.
Home Affairs may say that they are able to limit rights, when necessary, in terms of Section 36 of the Constitution, which provides for limitation of rights. However, Section 36 of the Constitution requires that a provision that limits rights should be a law of general application and that the limitation should be reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom.
But I don’t think that refusing to act on delinking a false profile from a deceased person could possibly be said to be reasonable and justifiable.
It is possible to file a complaint against Home Affairs at their Head Quarters by phoning 0800 60 11 90.
In trying to sort this out, it would obviously help for your cousin and their mother to help you. They could, for example, provide sworn affidavits as to their own identities and relationship, and declare that your cousin is not your mother’s child and was not adopted by your mother. And that they are asking that the record be set straight.
Perhaps a first step would be to ask for a meeting with your cousin and their mother and also a third person that you all know and respect, and try to get some agreement as to the way forward.
In 2004, Deputy Chief Justice Pius Langa said in the Bhe case that family and clan meetings "… provide a setting which contributes to the unity of family structures and the fostering of co-operation, a sense of responsibility in and of belonging to its members, as well as the nurturing of healthy communitarian traditions such as ubuntu."
But your cousin and their mother may be unwilling to help you, as your cousin may be occupying your mother’s house as her descendant, in terms of the Intestate Succession Act.
In terms of that Act, when a person dies without leaving a will, her estate is inherited by
If there is more than one descendant, they are all entitled to an equal share of the estate. But as you are your mother’s direct descendant, you are first in line to inherit.
If that does not work, you would need to seek legal advice.
You could approach Legal Aid, which is a means-tested organisation that must assist you if you can’t afford a lawyer.
Here are their contact details:
Legal Aid Advice Line (Toll-free): 0800 110 110
Please-Call-Me number: 079 835 7179
You could also approach one of the following organisations that have had a great deal of experience with Home Affairs:
Musina 015 534 2203
Durban: 031 301 0531
Pretoria: 012 320 2943
Johannesburg: 011 339 1960
Cape Town: 021 424 8561
Johannesburg: 011 836 9831
Cape Town: 021 481 3000.
Pro Bono, a legal organisation that will take a case on without charge, if they think it is in the public interest:
Johannesburg: 011 339 6080
Cape Town: 087 806 6070/1/2
Wishing you the best,
Answered on March 20, 2023, 4:15 p.m.
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Please note. We are not lawyers or financial advisors. We do our best to make the answers accurate, but we cannot accept any legal liability if there are errors.